Calcutta High Court (Appellete Side)
Dr. Abhro Ghosh & Ors vs Union Of India & Ors on 27 September, 2022
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Before:
The Hon'ble Justice Lapita Banerji
WPA No. 5284 of 2022
Dr. Abhro Ghosh & Ors.
Vs.
Union of India & Ors.
For the petitioners : Mr. P.S. Deb Barman, Adv.
Mr. Nazar Chowdhury, Adv.
Mr. M.A. Salik, Adv.
For the Respondent no.2. : Mr. Debu Chowdhury, Adv.
For the Union of India : Mr. S.K. Tewari, Adv.
For the Respondent Nos.3-8 : Mr. Amit Chakraborty, Adv.
Ms. Sarda Sha, Adv.
Hearing concluded on : 15.09.2022
Judgment on : 27.09.2022
Lapita Banerji, J.:- The writ petitioners claim to be Junior
Residents/Diplomate of National Board (in short, DNB) trainees of B.R Singh
Railway Hospital, Sealdah under the management and control of Eastern
Railway/ respondent no. 5.
2. The writ petitioners joined the aforesaid course in the month of
August /September 2020.
3. The writ petitioners who are qualified doctors, being Diplomate of
National Board (DNB) trainees received monthly salary/stipend at the
scale admissible to the Doctors as per 6th Central Pay Commission (CPC)
scale. The petitioners claim that at the time of joining as DNB trainees,
they took into consideration the salary/stipend payable to DNB trainees in
Railway Hospitals. After consideration of the same they pursued courses at
B.R. Singh Hospital, Sealdah.
4. All of a sudden, without giving any notice or right of hearing to the
petitioners their monthly salary/stipend was reduced to 1/3rd from
January, 2022.
5. By a Government Circular dated October 8, 2008 issued by the
Under Secretary to the Government of India, Ministry of Health and Family
Welfare, it was recommended that the existing pay for the Junior Residents
would be as per the 6th Central Pay Commission and the basic pay should
be multiplied by 1.86 for fixation of pay in the revised scale.
6. By a Circular dated April 6, 2009 issued by the Executive Director,
Health Railway Board to the General Manager, All India Railways, it was
directed that the emoluments/stipend payable to DNB trainees (Junior
Residents) working in all the Railway Hospital should be revised as per the
previous Circular of the Ministry of Health and Family Welfare dated
October 8, 2008 issued following a Circular dated October 1, 2008.
7. The revised rate was applicable with effect from January 1, 2006 and
the arrears were payable to the DNB trainees from the same date.
8. From the aforesaid Circular dated April 6, 2009 it appears that the
Ministry of Railways, Government of India did not make any distinction
between the stipend/salary to be paid to the DNB trainees with the salary
that was payable to the Junior Residents.
9. By another Circular dated May 13, 2011 it was clarified by the
Executive Director, Health, Railway Board, Ministry of Railways that the
decision to pay salary to the Junior Doctors (DNB trainees) "has been
taken by the Government after due consideration of the fact that the Junior
Doctors of DNB trainees are full-fledged qualified doctors duly registered by
the Medical Council and entitled to practice medicine. They render full-
fledged service as doctors and are available in hospital round the clock.
Along with this Residency, they also work towards obtaining
specialist/super-specialist qualification viz. DNB, MD. M.S. etc. Thus, the
amount they receive as 'salary' for rendering full service as doctor and not
'Stipend' for DNB course".
10. By the same 2011 circular the admissibility of Non Practicing
Allowance (NPA) to DNB trainees, was accepted since the DNB trainees
were qualified doctors who were entitled to practice medicine. Hence, they
were held entitled to NPA and other allowances like other doctors in the
Government of India/ Railways. The aforesaid Circular dated May 13, 2011
was issued in consultation with Finance Directorate of the Ministry of
Railways.
11. By a Circular issued by the National Board of Examinations of
Medical Sciences (NBEMS) previously known as National Board of
Examinations (NBE) on June 11, 2018 it was observed that the DNB
trainees pursuing various courses in Railway Hospital can be treated at par
with the Junior Residents/ Senior Residents for the State of Delhi.
12. By the impugned memo dated January 21, 2019, the Joint Director/
Health, Railway Board issued an office Circular to the General Managers /
All India Railways stating that the power to finalize the rate of stipend
payable to DNB trainees was based on NBE guidelines dated June 12, 2018
and the same was delegated to MD/CMS of a Railway Hospital with the
concurrence of the associates finance of the zone.
13. By same Circular it was stated that the stipend payable to Junior
Residents/Senior Residents engaged in Railway Hospitals may be revised
provisionally as per 7th Central Pay Commission by placing them in Level-
10 and Level-11 of the pay matrix.
14. By the guidelines issued by NBE on April 2, 2019 the minimum
amount of the stipend payable to DNB trainees in a NBE Accredited
Hospital was fixed. It was stated that the higher of the basic stipend, as
mentioned in the NBE guidelines and the basic stipend mentioned to the
State Government Policy, will be payable to the DNB trainees. The payment
of the monthly stipend payable to the DNB trainees as per the NBE
guidelines was held to be mandatory.
15. By a letter dated July 3, 2019, the Joint Director, Health, Railway
Board, intimated to the Principal Chief Medical Director/ Chief Medical
Officers that the fixation of the stipend payable to DNB trainees was
designed to be made in terms of the Circular issued by the Railway Board
on January 21, 2019 keeping in mind the NBE's guidelines dated April 2,
2019 and subsequent clarification dated May 29, 2019.
16. By the impugned memo issued by the MD, B.R. Singh Hospital dated
November 2, 2020, the stipend payable to the 1st year and 2nd year DNB
trainees were proposed to be reduced as follows:-
Year Amount of Stipend
1st Rs. 43.758/- per month
2nd Rs. 47.124/- per month
17. By an office order dated May 5, 2021 issued by the Joint Director
NBE to the Executive Director/Health, it was stipulated that the
salary/stipend to be paid to the DNB Students in Railway Hospitals
should be at par with the basic stipend being paid to the Junior Residents
and Senior Residents in DNB and DRNB courses respectively.
18. By the impugned memo dated February 8, 2022 it was observed by
the Senior Assistant Financial Advisory Eastern Railway, Kolkata that since
the stipend paid to the DNB, PGT at B.R. Singh Hospital, Sealdah were
very much on the higher sight in comparison to the rates vetted by the
office, the position has to be reviewed and report is to be prepared.
19. Mr. Deb Barman, learned Counsel, appearing on behalf of the writ
petitioner submitted that despite the DNB trainees rendering their services
as Junior Doctors in the hospital in issue, arbitrarily and illegally their
stipend/salary has been grossly deducted to almost 1/3rd by the Hospital
Authorities. The writ petitioners were getting a net pay of a sum of Rs. 90
thousand to around 1 lakh till the month of December, 2021.
20. Suddenly, from June 2022 without any reason or any hearing the
petitioners were being paid around Rs. 35 thousand and recovery of
approximately Rs. 89 thousand was being made for over payment of DA.
Mr. Deb Barman submitted that such an arbitrary reduction in the scale of
pay vide impugned office order January 21, 2019, November 2, 2020 and
February 8, 2022 is not legally tenable. He prayed for quashing of and/or
setting aside of the Office orders dated January 21, 2019 and November 2,
2020 culminating into the Impugned Memo of February 8, 2022. He relied
on a Judgment of a Co-ordinate Bench of the High Court of Adjudicature at
Madras in WP No. 14430 and 18121 of 2018, in support of his contention
that there can be no discrimination in the amount of salary paid to the
DNB trainees in other regions of the Railways by way of salary, HRA, DA,
NPA and other allowances against the trainees working in the Eastern
Railway Hospitals.
21. It has been held by the Single Benches as well as the Division
Benches of the Madras High Court that reduction in the stipend payable to
DNB trainee is impermissible and the same should be regarded as salary
"Not stipend". Therefore, the writ petition being WP No. 14430 and 18121
of 2018 was allowed by giving a strict warning to the respondents as they
had not acted good faith in interpreting the previous circulars issued by the
Ministry of Railways and NBE.
22. No distinguishing ground has been made out as to why the DNB
trainees working under the Eastern Railways should not have similar scale
of pay with the DNB trainees working for the Railways in other regions.
23. Mr. Chowdhury appearing for NBE supports the cause of the writ
petitioners and the circulars issued by NBE on April 2, 2019 and also May
5, 2021 and states that the writ petitioners/DNB trainees should be treated
at par with the Junior Residents of the Railway Hospitals. Relying on the
Circular dated May 5, 2021, he submits that the stipend/salary paid to
the Junior Residents should be equivalent to the amount paid to the DNB
trainees in the Railway Hospitals. As per NBE's Circulars there is no reason
to discriminate between DNB trainees and the Junior Residents.
24. Mr. Amit Chakraborty, appearing for respondent no. 3 to 8 submits
that the Circulars dated January 21, 2019, July 3, 2019, February 8, 2022
have been issued taking into consideration NBE's guidelines dated April 2,
2019. The minimum amount of stipend payable to DNB trainees as stated
in the NBE's guidelines has been complied with. He relies on NBE's
Circular dated May 29, 2019 to support his contention that the only
requirement was to pay a basic stipend as prescribed by NBE or in
accordance with the State Government Policy (whichever is higher).
25. The Railway Board keeping in mind the NBE's guidelines dated April
2, 2019 has issued directions for payment of stipend at the rate of Rs.
43,758/- per month to 1st year trainees, Rs. 47,124/- per month to 2nd year
trainees and Rs. 50,490/- per month to 3rd year trainees for DNB Courses.
By the office memo dated October 9, 2020 the Accounts Department,
Eastern Railway not only recommended the reduction of the stipend
payable to the DNB's trainees but also recommended recovery of higher
stipend paid so far to them.
26. Having considered the rival submissions of the parties and the
materials placed on record, this court is of the view that no discrimination
can be made by the Accounts Department, Eastern Railway regarding the
stipend/salary payable to the DNB trainees of B.R. Singh Hospital,
Eastern Railway as against the stipend/salary payable to the DNB trainees
rendering services in Railway Hospitals of other regions especially in view of
the fact that there is no allegation regarding the number of hours or rigour
of service rendered by them is in anyway less than that of DNB trainees in
other regions.
27. From the supplementary affidavit filed on behalf of the petitioners it
appears that the DNB trainees/Junior Residents get a pay of Rs. 56,100/-
at the Northern Railway Central Hospital, New Delhi as well as at the
hospitals of maintain by South Eastern Railways along with Dearness
Allowance (DA), Non-Practicing Allowance (NPA), Transport Allowance (TA)
as well as House Rent Allowance (HRA).
28. The Executive Director, Health of the Ministry of Railways,
Government of India issued the Circular dated May 13, 2011 whereby the
amount received by the DNB trainees were termed as "salary" and not
"stipend" for rendering full service as doctors. The junior doctors/ DNB
trainees were found to have qualified MBBS examination and were found to
be rendering full-fledged service as doctors who were available in the
hospital round the clock. Therefore, their pay was revised acknowledging
the fact that the DNB trainees were at par with the Junior Residents.
29. Even before the Circular dated May 13, 2011, the Executive Director.
Health, Ministry of Railways, Government of India by a Circular dated April
6, 2009 considered the DNB's trainees at par with the Junior Residents
and revised the stipend/emoluments payable to DNB trainees (Junior
Residents) from January 1, 2006. The said Circular dated April 6, 2009
took into consideration the recommendations for implementation of 6th
Central Pay Commission vide office Circulars dated October 1, 2008 and
October 8, 2008.
30. No reason has been attributed by the Joint Director Health, Ministry
of Railways for issuance of the impugned memo dated January 21, 2019
where the DNB trainees were segregated from Junior Residents and Senior
Residents. The Railway Circulars dated April 6, 2009 and May 13, 2011
were not taken into account, in the Impugned Circular dated January 21,
2019. On the one hand, the impugned Circular dated January 21, 2019
relied on the instructions given by office Circulars dated October 1, 2008
and October 8, 2008 and on the other hand was completely silent on the
recommendations made in the later Circulars dated April 6, 2009 and May
13, 2011 which took into account the 2008 Circulars.
31. After considering the hours and nature of duty and giving equal
status to the DNB trainees with the Junior Residents, the Joint Director,
Health, Ministry of Railways, Government of India could not withdraw the
said status without assigning any reason, arbitrarily by the impugned office
order dated January 21, 2019. The said office order is conspicuously silent
about the reason for finalization of the rate of stipend payable to the DNB
trainees by the MD/CMS of a Railway Hospital as against the stipend
payable to the Junior Residents/Senior Residents being revised
provisionally as per 7th Central Pay Commission placing them in Level-10
and Level-11. The Impugned Circular of January 21, 2019 is silent as to
the cause of such segregation.
32. Therefore, the impugned Circular dated January 21, 2019 is set
aside and/or quashed for being arbitrary and for taking into account
irrelevant considerations and failing to take into account relevant
considerations.
33. No reason provided in the Impugned Circulars as to why the pay was
suddenly considered to be higher for DNB trainees when there was no
reduction in the nature of their work. Hence, the office memo dated
November 2, 2020 along with the office memo dated February 8, 2022
issued by the Accounts Department, Eastern Railway are quashed and or
set aside.
34. The writ petitioners have been working from August/September 2020
and despite the Impugned Circulars dated January 20, 2019, November 2,
2020, they were getting paid at a scale of pay equivalent to that of the
Junior Residents. The Respondents no. 2 to 8 cannot now rely upon the
minimum stipend fixed by the NBE for reduction of the scale of pay to the
DNB trainees when by their own Circulars passed in 2009 and 2011, they
decided to treat the DNB trainees at par with the Junior Residents for
rendering full-fledged service as doctors and being available in the hospital
round the clock.
35. The NBE only guaranteed the minimum amount of stipend payable
to the DNB's trainees by the guidelines dated April 2, 2019. The NBE
further clarified by its office Circular dated May 29, 2019 that where the
stipend paid to MD/MS and DM/MCH trainees of the State Government
Medical Colleges was structured as the basic pay plus various allowances
paid as per recommendations of 7th Central Pay Commission, the fresh
basic stipend according to the State Government Policy in NBE stipend
guidelines should be interpreted as pay Level-10 of 7th Central Pay
Commission.
36. Since this court has already held that the distinction made in the
Impugned Circular dated January 21, 2019 between the Junior Residents
and DNB trainees was arbitrary and illegal, the revised scheme of pay as
per the 7th Central Pay Commission provisionally applicable to the Junior
Residents is also held to be applicable to the 'DNB' trainees.
37. The writ petitioners are entitled to receive the salary/stipend at the
same scale of pay at which they were receiving in December 2021 at par
with the Junior Residents. Arrears on account of difference in salary paid
from January 2022 till September 2022 shall be paid by January 31, 2023
along with interest at the rate of 6% per annum.
38. With the aforesaid directions the writ petition being WPA 5284 of
2022 is disposed of.
39. All parties to act on server copy of this Order as downloaded from the
official website of this Hon'ble Court.
40. Urgent certified photocopy of this judgment, if applied for, be
supplied to the parties upon compliance of all the requisite formalities.
(Lapita Banerji, J.)
